ESA Changes - November, 2017

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Ontario’s Fair Workplaces, Better Jobs Act, 2017 received Royal Assent on November 27, 2017. This act makes amendments to several statutes including the Employment Standards Act, 2000 (“ESA”). The following are some key changes to the ESA and the effective dates:

Date in Force

What’s New

Details

Nov. 27, 2017

Dependent Contractors

The definition of employee has been amended.

Purpose is to explicitly ban employers from treating employees as independent contractors for the purpose of the ESA.

Dec. 3, 2017

Parental Leave

(see chart below on changes to Leaves)

Entitlement to parental leave is increased from 35 to 61 weeks for employees who take pregnancy leave and from 37 to 63 weeks otherwise.

Critical Illness Leave – Adult Family Member

(see chart below on changes to Leaves)

This leave used to be only for child (which is and remains 37 weeks) but now includes an expanded definition of “family member” and includes adult family members. Leaves related to adult family members are 17 weeks.

Jan. 1, 2018

Increase in Minimum Wage

Minimum wage increases to $14 per hour with similar increased to students under 18, liquor servers, and homeworkers.

The minimum wage will increase to $15 per hour on January 1, 2019.

Scheduling

Three Hour Rule” takes effect providing that employees who are on call or on shifts requiring less than 3 hours, be paid at least 3 hours regular pay. Employees have a right to refuse requests or demand to work on a day than employee is not scheduled to work with insufficient notice and entitlement to be paid for 3 hours of work in the event of cancellation with insufficient notice.

Requests for a Change to Schedule or Work Location

Employees are entitled to request changes to their schedule or work location. Employers must discuss these requests with the employee and either grant the request or provide reasons for a denial.

Vacation

Vacation time entitlement is increased to 3 weeks and vacation pay to 6% after an employee has worked with the same employer for 5 years or more. Employer are required to retain vacation records for 5 years (was 3 years).

Public Holiday

The calculation of public holiday pay is simplified:

Regular wages earned in pay period immediately prior to public holiday ÷ number of days employee worked in that period.

Employers are required to provide an employee with a written statement that sets out certain information when a day is substituted for a public holiday.

Overtime Pay

For employees who work more than one position with an employer, the blended rate is repealed and the employer is required to pay overtime based on the rate of pay for the work being performed at the time the overtime hours are accrued.

Electronic Agreements

Agreement in writing includes an agreement in electronic form.

Personal Emergency Leave

(see chart below on changes to Leaves)

Applies to all employees and not just employers of 50 or more employees.

Employees are entitled to 10 personal emergency leave days in a calendar year, two (2) of which are paid days, if the employee has been employed for one week or longer. The paid days must be taken before any unpaid days of personal emergency leave. Employers have the right to require evidence of entitlement to these days but are not permitted to require a certificate from a qualified health practitioner – no sick notes.

Family Medical Leave

(see chart below on changes to Leaves)

Increased to 28 weeks (from 8 weeks). Definition of “family member” greatly expanded. Definition of “qualified health practitioner” expanded.

Child Death Leave and Crime-Related Child Disappearance Leave

(see chart below on changes to Leaves)

Amended to allow up to 104 weeks for crime-related child disappearance leave (was 52 weeks).

Domestic/Sexual Violence Leave

New. Up to 10 days and up to 15 weeks leave. First 5 days are paid.

Temporary Help Agencies

Temporary help agencies are required to provide an assignment employee with one week’s written notice or pay in lieu if an assignment that was estimated to last for three months or more is terminated before the end of its estimated term unless another assignment lasting at least one week is offered to the employee.

Related Employer Liability

Separate persons are treated as one employer if associated or related businesses are or were carried on by or through an employer and one or more other persons.

This does not apply to the Crown, a Crown agency or an authority, board, commission or corporation appointed by the Crown.

Self-Help Requirement

Employees are no longer required to address an alleged contravention with the employer prior to filing a claim with the Ministry of Labour.

Crown Employees

ESA provisions apply to employees of the Crown or a Crown agency.

Interns/Trainees

The list of persons exempted from the ESA is amended to exempt only individuals who perform work under a program that is approved by a private career college registered under the Private Career Colleges Act, 2005 and that meets such criteria as prescribed.

April 1, 2018

Equal Pay for Equal Work

Change in the definition. Amended to provide for entitlement to equal pay regardless of difference in employment status as well as equal pay for assignment employees of a temporary help agency. Employees have a right to inquire about rates of pay without reprisal.

 

Changes to Leaves of Absence in Ontario – ESA
as a result of the Fair Workplaces Better Jobs Act, 2017

Type of Leave

Originally

Change

Details

Effective
Date

Pregnancy Leave

s.46

 

Definition of “legally qualified medical practitioner”

Includes a midwife and a registered nurse holding an extended certificate.

Jan. 1, 2018

Parental Leave
ss. 48-49,51-53

35 weeks for birth mothers who took pregnancy leave

Now 61 weeks

Note:  only birth mothers can take “pregnancy leave” which is up to 17 weeks.

Dec. 3, 2017

37 weeks for parents who are not birth mothers

Now 63 weeks

Family Medical

s.49.1

 

Definition of “qualified health practitioner”

Includes physician, registered nurse holding an extended certificate of registration (or equivalent), and members of prescribed class of health practitioners

Jan. 1, 2018

 

Definition of “family Member” greatly expanded

8 weeks

28 weeks

Critical Illness Leave – Child

s.49.4

37 weeks

Was only for a child – but now includes any critically ill family member.

NEW family member” definition is expanded

Need a certificate from a qualified heal practitioner stating that family member is critically ill and requires support and sets out the period of time family member requires care or support.

Dec. 3, 2017

Critical Illness Leave – Adult

s.49.4 - NEW

17 weeks

Child Death Leave

s.49.5

Was one section

Same – 104 weeks

 

Jan. 1, 2018

Crime-Related Child Disappearance Leave

s.49.6

Now 104 weeks (was 52 weeks)

Domestic/Sexual Violence Leave
s. 49.7 NEW

 

 

Up to 10 days and up to 15 weeks leave.

First 5 days are paid days.

Employer entitled to request employee provide evidence reasonable in the circumstances.

Jan. 1, 2018

Personal Emergency Leave

s. 50

Applied only to employers with 50 or more employees.

Now applies to all employers.

2 of the 10 days must be paid.

Employees are entitled to this leave once employed for one week or more.

No doctor’s notes - Employer can require employee to provide evidence reasonable in the circumstances – but cannot require a certificate from qualified practitioner.

Jan. 1, 2018

 

The above consists of an overview of some of the key changes to the Ontario Employment Standards Act, 2000. Should you require further assistance with these legislative changes or with employment law in general, please contact Dale & Lessmann LLP and speak to one of our employment lawyers.

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Christina J. Wallis is a Partner lawyer practising civil litigation with a focus in Employment Law at Dale & Lessmann LLP, Toronto, Ontario, Canada, a full service business law firm. To speak to Christina please call 416-369-7832 or send an email message to her at cwallis@dalelessmann.com.